Disclosure and inspection Flashcards
When is a disclosure order usually made?
On allocation to a track or case management conference
When must parties file and serve documents on the small track?
At least 14 days before final hearing
What is the disclosure direction for the fast track?
Standard disclosure
What is the disclosure procedure for the multi track?
- disclosure report filed and served no less than 14 days before first case management conference
- Not less than 7 days before first case management conference, consider issues and discuss agreement of draft disclosure order
What are the contents of a disclosure report?
a) what relevant documents exist, or may exist;
b) Where, and with whom, they are;
c) How any electronic documents are stored;
d) Estimate the broad range of costs that could be involved in giving standard disclosure in the case;
e) States which of the disclosure directions
What are the exceptions to the rule that disclosed documents cannot be used outside of proceedings?
a) Doc referred to/read at hearing in public
b) Court permission
c) Party who disclosed and doc belongs to agreed
When is there no obligation to file a disclpsure report?
Personal injury
What type of evidence does the disclosure duty relate to?
Documents in their control
What are documents?
Anything that records information
What does ‘in their control’ mean?
- physical possession
- Right to possession
- Right to inspect or take copies
- Presently and formerly
What is standard disclosure?
documents which:
a) It relies on;
b) Adversely affect its own case;
c) Adversely affect another party’s case;
d) Support another party’s case; or
e) It is required to disclose by a relevant practice direction
What must a party make a reasonable search for?
documents falling into categories (b) to (e)
What is considered when deciding what a reasonable search is?
- Number of documents
- Nature and complexity of proceedings
- Difficulty/expense in retrieving document
- Significance of document likely to be found
What are the three parts of the disclosure list?
- in my control, dont object to inspection
- in my control, do object
- documents not in my control
What is the disclosure statement?
o extent of the search made
o certifies understands its duty to disclose the documents
o certifies to the best knowledge it has carried out duty
What are the further requirements of the disclosure statement?
- must include details of documents where party considers inspection disproportionate
- must be signed by the disclosing party.
- If company, should be made by appropriate officer who must identify and state why they are appropriate person
When may a party not rely on a document in evidence?
Failed to disclose
refused inspection without court permission
What is the consequence of a false disclosure statement?
contempt of court
What is a defence to contempt of court for a false disclosure statement
honest belief in truth
What happens if additional documents come to light after the disclosure list is served?
supplemental list
When does a party not have a right to inspect a disclosed document?
- The document is no longer in the disclosing party’s control
- Allowing inspection would be disproportionate
- Party has right or duty to withhold inspection (privilege)
When can inspection not be refused on grounds of disproportionality?
Party wishing to rely on document
Practice direction requires disclosure
What are privileged documents?
- Legal advice privilege
- Litigation privilege
- Without prejudice communications
When can a disclosed document be redacted?
- clear and distinct part which does attract privilege
- information is totally irrelevant to the dispute
What are the points to remember for waivering privilege?
- waiver in part will lead to waiver of remainder unless deals with different subject matter
- waiver of one document can lose privilege of other docs
Who establishes privilege?
Party claiming
What is the procedure for inspection?
- Written notice of wishing to inspect
- O/S must allow inspection within 7 days of receipt
What is legal advice privilege?
Confidential communication between lawyer and client prepared for dominant purpose of legal advice
What is not considered legal advice privilege?
solicitor’s attendance note of a conversation between parties or of what happens at court
What is litigation privilege?
- Confidential
- Communication between a lawyer and a client or third party
- Dominant purpose to obtain legal advice
- Litigation reasonably in prospect
What is without prejudice communications?
A document whose purpose is a genuine attempt to settle
a dispute.
What application is made after proceedings started for information from an opponent?
Specific disclosure and/or specific inspection
What application is made before proceedings started for information from an opponent?
pre-action disclosure
What application is made after proceedings started for information from a non party?
Disclosure from someone not a party to proceedings
What application is made before proceedings started for information from a non party?
Norwich Pharmacal Orders
What may a specific disclosure/inspection order require?
- Disclose documents / classes of documents specified in the order
- Carry out a search to the extent stated in the order
- Disclose any documents located as a result of that search
What is the procedure for a specific disclosure application?
- made by application notice
- specify order sought, including documents sought in a schedule to the order
- Supported by evidence
What are the conditions for pre action disclosure?
a) respondent is likely to be a party to subsequent proceedings; and
b) applicant is also likely to be a party to those proceedings; and
c) R’s duty of standard disclosure would extend to the documents sought
d) Desirable to dispose fairly, assist resolution without proceedings and save costs
What is the procedure for pre action disclosure?
- specify the order sought, including listing the documents sought
- be supported by evidence
Who usually pays costs for pre action disclosure application?
Party seeking order
What are the requirements for a not party to proceedings order?
a) documents are likely to support applicant’s case/adversely affect the case of other parties and
b) Disclosure necessary to dispose fairly of the claim or to save costs.
What is the procedure for a not party to proceedings order?
- made by application notice
- specify the order sought, including listing the documents sought
- supported by evidence
- require respondent to specify documents no longer under his control or right to withhold from inspection
What is a norwich pharmacal order?
Where proceedings cannot be commenced as identity of defendant unknown
What is the procedure for a norwich pharmacal order?
Applicant issues claim form against persons unknown
What are the requirements for a norwich pharmacal order?
a) Wrong carried out by ultimate wrongdoer
b) Need for order to enable action against ultimate wrongdoer
c) Person against whom order sought is
a. No more than a mere witness/bystander and
b. Able to provide information necessary to enable wrongdoer to be sued
